Chapter 2: Extinguishment of Native Title
Extinguishment
- Mechanisms
of Extinguishment: An Overview
- Criteria for Extinguishment not Co-existence
- NTA Prescribes Complete and Partial Extinguishment of Native Title
- NTA Fails to Proscribe Extinguishment Resulting from the Application of General Principles
Limited compensation for the deprivation of native title rights
Conclusion
The two recent High Court decisions in Miriuwung Gajerrong [1] and Wilson v Anderson [2] have clarified some important issues regarding the extinguishment of native title under the Native Title Act 1993 (Cwlth) (‘NTA’) and its relationship with extinguishment under the common law. They also provide some important insights into the meaning of discrimination as it responds to the specific issues raised by the recognition of native title, a proprietary interest which is inherent to a particular racial group. This section of the Report seeks to delineate the Court’s decision on these issues in order to participate in and progress a long-standing debate concerning native title.
The central issue in this debate is whether the extinguishment of native title as it occurs under Australian law is racially discriminatory. It is an important debate about the ethical underpinnings of a legal regime which for the first time gives recognition to the inherent rights of Indigenous people.
In respect of the original NTA, there appeared to be little doubt, both internationally and domestically, that the legislature had put in place an equitable system that had the overall consent of Indigenous people. The Committee on the Elimination of Racial Discrimination (‘CERD’) accepted in 1993 that the original NTA was compatible with Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination [3] (‘ICERD’) although this finding was contested by various Aboriginal activists. In 1995 the High Court in Western Australia v Commonwealth [4] (‘Native Title Act Case’) declared the original NTA to be either a special measure under s8 of the Racial Discrimination Act 1975 (Cwlth) (‘RDA’) or ‘a law which, though it makes racial distinctions is not racially discriminatory’. [5]
In 1998 the debate was enlivened by the introduction into Parliament of substantial amendments to the NTA which provided for the statutory extinguishment of native title. In particular, the introduction of the confirmation provisions, which provided for the extinguishment or partial extinguishment of native title by the creation of non-native title tenures and classes of tenures, was criticised as a breach of the international and domestic law on racial equality. The extension of the validation provisions, which reversed the effect of the RDA in order to validate discriminatory laws which affected only native title, was also the subject of widespread criticism both in and out of Parliament.
The prolongation of this debate to the present is partly due to the fact that there is no commonly accepted mechanism for arbitrating it. The attempt, in March 1999, by CERD to provide an authoritative decision to the effect that the amended NTA was discriminatory [6] and failed to meet Australia’s obligations under ICERD, was immediately condemned by the Commonwealth Government as unbalanced and ‘blatantly political’. [7] The criticisms of the NTA by the Human Rights Committee in 2000 following CERD’s observations were met with similar hostility.
Despite this opposition, CERD’s 1999 decision did trigger a further examination of the issue in 2000 when the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (‘PJC’) conducted an Inquiry into CERD’s findings. [8] I noted in my Native Title Report 2000 that the dialogue generated by this Inquiry was important in elevating the overall level of understanding within the community of the meaning of equality in relation to Indigenous people and native title. [9] I also noted that positions did not change as a result of this dialogue and the debate continued to be waged along political party lines. Indeed the PJC provided two opposing reports consistent with this division.
The rejection by the Government of the CERD findings was also a rejection of the authority of CERD to finally determine the issue. Australia has made it abundantly clear, in the native title arena and in respect of other human rights issues, that it does not consider itself morally bound by the decisions and observations of United Nations’ human rights committees. Yet there is no effective mechanism for the settlement of this debate at a domestic level. While the High Court considered it briefly in the context of the constitutional challenge of the NTA by Western Australia in the Native Title Act Case the question whether the extinguishment of native title, as it occurs through the NTA, is a breach of the RDA is effectively removed from judicial scrutiny as explained by the High Court in that case:
[E]ven if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act. [10]
Section 7(1) of the NTA [11], contrary to its suggestion, does not subject the NTA to judicial review on the basis of discrimination.
Another factor which has postponed the resolution of the debate as to whether the extinguishment of native title as it occurs under Australian law is discriminatory, is that there has been a high level of uncertainty around the two important components essential to its determination: first the interpretation that the High Court would give to the extinguishment provisions of the NTA and its relationship with extinguishment at common law; and second the meaning of discrimination as it applies to native title. The High Court, in Miriuwung Gajerrong and Wilson v Anderson has thrown judicial light on both these issues. This chapter considers the developments that have emerged in determining the extinguishment of native title. Chapter 3 considers the developments in relation to the notion of discrimination contained within the RDA and its application to native title. With both these concepts clarified, chapter 3 concludes there is no doubt that the extinguishment of native title, as it occurs under Australian law, is racially discriminatory both domestically and at international law. Once this fact is confronted the government should move to put native title on a firm footing of equality. Chapter 5 suggests various approaches to this exercise and ways in which the law could be amended.
Extinguishment
The High Court decisions in Miriuwung Gajerrong and Wilson v Anderson give clear direction on how the extinguishment of native title occurs first through the statutory framework of the NTA, including the State and Territory laws authorised by the NTA, and second through laws or executive acts which create rights in non-native title parties which are inconsistent with the continuance of native title rights. These two levels are not independent but work together in determining the full extent of extinguishment under Australian law.
Mechanisms of Extinguishment: An Overview [12]
The High Court has made it very clear in both Miriuwung Gajerrong and Wilson v Anderson that the NTA is the primary source for determining the extent to which the law recognises and extinguishes native title. The legislative control over the protection and extinguishment occurs through section 10 of the NTA which states that native title is recognised and protected in accordance with the NTA, and section 11(1) which proscribes extinguishment that is contrary to the NTA.
The chief mechanism by which the NTA effects both the protection of native title and its extinguishment is through prescribing what State and Territory laws are valid and the conditions and effect of their validity. As the High Court said in the Native Title Act Case:
A law protecting native title from extinguishment must either exclude the application of State and Territory laws or prescribe the areas within which those laws may operate. The Commonwealth has chosen to prescribe the areas within which those laws may operate. The Commonwealth has chosen to prescribe the areas available to control by other laws by prescribing what State and Territory laws are valid or invalid and, if valid, the conditions of validity. … The use of the term [valid], its derivatives or its opposite…so far as those respective terms relate to a State law, must be taken to mean having, or not having, (as the case may be) full force and effect upon the regime of protection of native title otherwise prescribed by the [NTA]. In other words, those terms are not used in reference to the power to make or to the making of a State or Territory law but in reference to the effect which a State law, when validly made, might have in creating an exception to the blanket protection of native title by s11(1). In using the terms ‘valid’ and ‘invalid’ the [NTA] marks out the areas relating to native title regulated exclusively by the Commonwealth regime. [13]
The NTA ‘marks out’ through two sets of provisions, the confirmation provisions and the validation provisions, an extensive area in which the creation of tenures by legislative and executive acts, prior to 1996, [14] will have full force and effect so as to extinguish native title. While s11(1) ensures that the extinguishment of native title is not inconsistent with the NTA, the NTA only specifies non-extinguishment in relation to future acts and some categories of acts affected by the RDA. [15] The NTA, through the validation and confirmation provisions, stipulates that the effect of creating specified tenures or classes of tenures is to extinguish native title either completely or partially. It leaves it to the State and Territory governments to enact legislation under the authority of the NTA which extinguishes native title in respect of these tenures. In addition the NTA permits the extinguishment of native title where, at common law, such an effect is found to occur. I note in chapter 5 of this Report that the process of amending the NTA to make it consistent with human rights principles must address these tiers of extinguishment inherent in the structure of the legislation. Annexure 3 to this Report sets out, in plain English, how the validation and confirmation provisions of the NTA operate to prescribe what State and Territory legislation is given a complete, a partial or a non-extinguishing effect. [16]
The High Court’s approach to extinguishment has been directed by the distinction, contained in the NTA, between complete extinguishment of all native title rights and interests and partial inconsistency in which native title is extinguished to the extent of any inconsistency. The High Court saw this statutory distinction as mandating an approach to extinguishment in which native title rights were to be identified as a collection of specific rights and interests. [17] Once identified in this way, extinguishment of specific rights or the totality of the rights occurs ‘by laws enacted by or with the authority of, the legislature or by the act of the executive of powers conferred upon it’. [18] The High Court in Wilson v Anderson agreed with Justice Brennan’s threefold categorisation of laws that had an extinguishing effect.
Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. [19]
In relation to (i) above, an example of laws or acts which simply extinguish native title are the scheduled interests which the NTA prescribes to have an extinguishing effect. [20] Extinguishment in category (ii) occurs wherever the continued existence of one or more or all native title rights is inconsistent with the legal rights and interests created by executive or legislative acts. [21] This is referred to as the inconsistency of incidents test. [22] It is applied to determine the partial extinguishment of native title resulting from legislative or executive acts including those specified under the NTA as previous non-exclusive possession acts (non-exclusive agricultural and pastoral leases), and those not specified but otherwise valid acts. In these cases, native title is extinguished to the extent of its inconsistency with non-native title rights. The criteria for extinguishment under the inconsistency test are discussed below.
The non-extinguishment principle, in which native title continues to exist even though it has no effect in relation to inconsistent acts, [23] only arises where the NTA deems this to occur. The High Court were adamant in Miriuwung Gajerrong that there is no place in the inconsistency of incidents test for the suspension of native title rights in favour of non-Indigenous rights. The High Court explained it as follows:
Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise. [24]
However, the Court did countenance the situation where native title rights were not inconsistent with the rights created under the grant of non-Indigenous tenures yet the ‘doing of any activity in giving effect to them’ [25] conflicted with the native title rights in question. In this event the rights under the non-Indigenous tenure, and the doing of any activity in giving effect to them, prevailed over the native title rights and interests but did not extinguish them.
These then are the mechanisms by which the NTA controls the extent to which native title is protected from or exposed to extinguishment and impairment. From a human rights perspective I have serious concerns with the operation and effect of these mechanisms. First, the criteria for determining the relationship between Indigenous and non-Indigenous interests on the same land fail to provide for the co-existence of these interests. Second, the NTA prescribes the extinguishment of native title in respect of an extensive range of tenures. Third, the NTA fails to limit the extinguishment of native title resulting from the creation of tenures other than those specified in the NTA, even though mechanisms are available to control this at a legislative level. Fourth, the NTA fails to proscribe the extinguishment of native title that, under the test of extinguishment, took place prior to the recognition of native title itself. Finally, the NTA fails to provide for compensation for the extinguishment of native title in the majority of cases.
Criteria for Extinguishment not Co-existence
The test which the High Court adopted in Miriuwung Gajerrong to determine whether laws or acts which create rights in third parties extinguish native title, either completely or partially, requires a comparison to be made between the legal nature and incidents of the rights created by statutory or executive acts and the native title rights arising out of traditional law and custom. Where there is an inconsistency between these two sets of rights then native title is either completely extinguished or extinguished to the extent of the inconsistency.
Underlying the inconsistency test is a hard and driving logic: a logic strongly identifiable with the legal process generally in its pursuit of a clear demarcation between conflicting rights leading to a final determination of disputes, one way or the other. That is, either the rights compared are consistent or they are inconsistent. If consistent, native title continues. If inconsistent, native title is extinguished.
Glaringly absent from this logic is the possibility of co-existence, where rights are negotiated and mediated to enable a diversity of interests (at least more than one) to be pursued over the same land. The idea that the law could assist to build relationships rather than separate interests was not explored. Yet, before the High Court for their consideration was a range of legal options which could underpin a co-existence approach. The Court’s development of its own approach to extinguishment brought into consideration these alternative approaches. It is to this development that I now turn.
Identifying Rights
Justice North, in his dissenting judgment in the Full Federal Court’s decision in Western Australia v Ward & o’rs, [26] postulated native title as an underlying right to the land on which other rights to undertake particular activities or exercise control depended. [27] From this holistic concept of native title based on the traditional and unique relationship between Indigenous people and the land, inconsistency, and thus extinguishment, would only occur where the rights created by statute were inconsistent with this underlying right. Inconsistency, at the level of pendant rights only, would not result in extinguishment but rather their suspension for the duration of the inconsistency. When this inconsistency ceased, usually because of the expiry or cessation of the non-Indigenous right, native title would revive. [28] This approach allows for the co-existence of Indigenous and non-Indigenous rights, while at the same time prioritising non-Indigenous rights to enable their unimpeded exercise.
The notion that native title might be suspended rather than extinguished was rejected by the High Court. Their full reasons are as follows.
First, it is an approach which proceeds from a false premise, that there can be degrees of inconsistency of rights, only some of which can be described as ‘total’, ‘fundamental’ or ‘absolute’. Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not there will be no extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise. Secondly, it is a mistake to assume that what the NTA refers to as ‘native title rights and interests’ is necessarily a single set of rights relating to land that is analogous to a fee simple. It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement. It is true that the NTA (in par (b)(ii) of s23G(1)) and the State Validation Act (in par (b)(ii) of s12M(1)) speak of the ‘suspension’ of inconsistent native title rights and interests in certain circumstances. However, this statutory outcome is postulated upon an inconsistent grant of rights and interests which, apart from the NTA and the State Validation Act, would not extinguish the native title rights and interests. An example would be a post-1975 grant which, by operation of the RDA, was ineffective to extinguish native title rights and interests. [29]
The difference between the High Court and Justice North in formulating the inconsistency test is not, as the Court suggested, Justice North’s ‘false premise’ that there can be degrees of inconsistency but rather their respective conceptualisations of native title against which an inconsistency with non-Indigenous rights is measured. Where native title is conceived as a deeper relationship to land, then inconsistency must be found to occur at this level for extinguishment to logically follow. Where it is conceived as a bundle of rights, with no underlying or unifying dimension, then inconsistency and thus extinguishment must occur at this more fragmented level.
Justice North’s conceptualisation of native title was not the only one available to the High Court to support a relationship between Indigenous and non-Indigenous interests in land based on co-existence. The trial judge in the Miriuwung Gajerrong case, Justice Lee, proposed that the fact of occupation by a community at the time of the assertion of sovereignty founds a native title claim. Determining extinguishment did not require the breakdown of this community title into its constituent parts, but rather occurred where there was an assertion by the Crown, through legislation or executive act, to exercise permanent adverse dominion over the land.
The High Court contends that the correctness of its ‘bundle of rights’ approach is mandated by the NTA, ‘particularly in the distinction now drawn in s23A … between complete extinguishment and extinguishment “to the extent of any inconsistency”’. [30] Yet it is difficult to see exactly how the regime of extinguishment under the confirmation provisions of the NTA mandates the Court’s conceptualisation of native title and its extinguishment outside of the NTA. What the Court’s contention does indicate is that its construction of native title is, to a large degree, driven by the logic of extinguishment rather than the other way round. That is, if native title can be partially extinguished then, it is reasoned, native title must be of a fragmentary nature. In contrast, Justice North’s conception of native title, as an underlying relationship to land, determines the test he postulates for extinguishment. From a human rights perspective it makes more sense, and is certainly more logical, to base a test for the extinguishment of native title on an understanding of the nature and origins of the title rather than to formulate a concept of native title derived from the test postulated in the NTA for its extinguishment. This is particularly so where the concept of native title formulated ensures its fragility and susceptibility to ongoing extinguishment.
A further basis for the High Court’s conceptualisation of native title as a bundle of rights stems from its interpretation of the requirements of s223 of the NTA that ‘requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them’. [31] In chapter 5 of this report I discuss in greater detail the way in which the Australian legal system gives recognition to traditional Indigenous laws and customs and suggest alternative approaches consistent with Australia’s human rights obligations. The Court recognises that the way in which an essentially spiritual connection is translated into legal rights and interests under the NTA perverts the Indigenous ‘ordering of affairs’. Yet the majority Judges felt constrained to support this process rather than take a course different to that laid down by the NTA.
Comparing Rights
A consequence of, and indeed reason for, translating the Indigenous relationship with land into a bundle of rights is that it makes possible the otherwise difficult exercise of comparing unique Indigenous interests with non-Indigenous interests. Once Indigenous and non-Indigenous interests are put into the language of legal rights, one set emanating from the traditional laws and customs, the other from the Crown, the logic of extinguishment can be applied to determine whether a comparison of these rights draws any inconsistency.
A basis for inconsistency when the two sets of rights are compared is the assertion of control over the land by the new sovereign. This imposition is viewed as an all-encompassing one which doesn’t need to be particularized as to the degree of control or object of control and would rule out control residing in any other entity.
The High Court has considered, in the Miriuwung Gajerrong decision, the issue of sovereignty and its relation with native title rights:
An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more that the right to be asked for permission to use or have access (important though that right inevitably is) there are other rights and interests which must be considered, including rights and interests in the use of the land. [32]
The extinguishment of native title rights to control or make decisions results not only from an analysis of the nature of native title, but from an assumption that the control exercised by non-Indigenous interests is singular, total and all-encompassing. On this assumption a comparison of rights inevitably draws an inconsistency between non-Indigenous and Indigenous control and authority over the same land. Table No 1, below, indicates the tenures in Miriuwung Gajerrong that partially extinguished native title. In all of those cases native title rights to control or make decisions or speak for country were extinguished.
As indicated, there were other possibilities and other assumptions before the High Court about the effect of the new authority on native title. [33] These allowed for co-existence of rights based on a notion of native title as a system of laws which, although unique, were internally strong and coherent. The majority in the High Court were unwilling to change not only their assumptions about the nature of native title but also, and perhaps more importantly, the nature of the power asserted by the colonising state.
The native title right to be asked permission to speak for country, and to control access to country, when compared to the rights created by many non-Indigenous tenures was found to be inconsistent with and thus extinguished by those rights.
A noticeable and, from a human rights perspective, alarming aspect of the exercise of comparing rights as it was applied in Miriuwung Gajerrong was that the characterisation of native title rights that best survived this test were ones which:
- were expressed at a high level of specificity; [34]
- were limited to the conduct of activities on the land rather than the control of activities on the land; [35] and
- confined those activities to traditional activities rather than contemporary activities.
Thus, for example, a right to dig for ochre was better able to survive the grant of a mineral lease on the same land than a right to utilise the resources of the land. Similarly a right to hunt and gather was better able to survive the grant of a pastoral lease than a right to control access to the land or make decisions about the use of the land. To find its place in the gaps and crevices of non-Indigenous interests, native title must be small, flexible and harmless. [36]
These characteristics of native title rights, particularly its specification as an activity on the land, contrast markedly with the legal rights in land found to emanate from the Crown. In fact the Court in Miriuwung Gajerrong was insistent that these latter rights were not to be identified by reference to the use that was made of the land after the grant was made but from an analysis of the legal effect of particular grants by or pursuant to the particular statute under consideration. [37] Indeed the High Court pointed out that the error in the majority’s decision in the Full Federal Court, particularly in relation to its analysis of the Ord River Project, was to identify the non-Indigenous rights by reference to the uses made of the land rather than the legal rights which authorised those uses. The way rights were exercised was clearly distinguished from the rights themselves and to determine these one went to the statute which created those rights.
Approaching native title rights in a similar way would require the Court to consider more closely the traditional laws and customs as the source of rights and distinguish these from the exercise of rights or conduct of activities on country. This would direct the Court back to the underlying relationship that Indigenous people have with the land, an essentially spiritual affair, as distinct from the exercise of rights stemming from this relationship; a distinction similar to the position postulated by Justice North in the Full Federal Court. Where there is an inconsistency stemming from the laws themselves, between the underlying relationship that Indigenous people have with the land and the statutory relationship non-Indigenous people have with the land, then and only then, would extinguishment occur. Where there is inconsistency only in the exercise of rights, the non-extinguishment principle would apply in the way Justice North envisaged and consistent with the High Court’s approach to this principle outlined above. Such an approach makes room for the continued existence of native title while at the same time ensuring that non-Indigenous people can continue utilising the land as they are authorised by statute to do: that is, co-existence.
Finding inconsistency
As indicated, inconsistency is the driving logic of extinguishment. Its seeming simplicity has already been disturbed by the possibility, discussed above, that the pre-packaging of native title rights has ensured their reduction and extinguishment.
Further difficulties arise in determining the ‘extent of the inconsistency’. The High Court appears to prefer an approach in which the entire native title right is extinguished wherever an inconsistency occurs. The rights most likely to be extinguished in this process are controlling rights, such as the rights to control access, to make decisions, and speak for country.
The more general the terms in which the findings are made as to the subsistence of native title, the more difficult the giving of specificity to findings of extinguishment, particularly where, as the NTA postulates, there may be partial extinguishment. [38]
An alternative approach, more sympathetic to co-existence, would allow so much of the native title right that is inconsistent with the rights under the grant to be excised from the native title right so as to eliminate the inconsistency, but not extinguish the native title right completely. This would allow generic native title rights to subsist except to the extent they are inconsistent with other statutory rights. Thus, for example, a native title right to speak for country could continue to exist albeit qualified by other rights in the same area. The extent of the inconsistency between the native title right to speak for country and rights under a pastoral lease may allow some residual decision-making powers in native title holders to remain, such as those suggested by Justice Kirby in Miriuwung Gajerrong including the right to protect the country from degradation and to care for it spiritually. [39] Justice Kirby expressed his disappointment that his view on this point, expressed in Yarmirr, [40] that exclusive native title rights could retain a characteristic of exclusivity while being qualified by other public rights in the same area, was not supported. [41]
His Honour’s approach appears consistent with sections 225 (b), (c), and (d) of the NTA which require a court to make a determination of ‘the nature and extent of native title’ and ‘the nature and extent of other interests’ in the determination area and ‘the relationship between’ the two. Yet the majority of the High Court in Miriuwung Gajerrong do not feel compelled by these provisions to adopt a similar approach to inconsistency.
Finding extinguishment
The result of characterising native title in the language of legal rights, comparing them to statutory rights and finding inconsistency, is the extinguishment of native title. A question which arose in applying this test in both the Miriuwung Gajerrong and the Wilson v Anderson decisions was whether the inconsistency of incidents test was different to and not as rigorous as the test applied by courts to determine whether general property rights have been appropriated by a statute. A legislative intention to abrogate general property rights will not be inferred unless there is a clear and plain intention to do so. [42]
In both these decisions the High Court said that the clear and plain intention test was apt to be misleading when applied to native title insofar as it was thought to require a subjective intention on the part of those creating the tenures. [43] This was particularly so since native title was not recognised at the time the property laws under consideration in the Miriuwung Gajerrong and the Wilson v Anderson decisions were formulated.
Ensuring the test for extinguishment of native title is an objective test is not a concern from a human rights perspective. As Justice Kirby pointed out in Miriuwung Gajerrong the application of the inconsistency of incidents test is not, as such, in conflict with the requirement of a clear and plain intention to abrogate property rights, that being an objective test of whether the legislation has the effect of depriving Indigenous people of these rights. [44] What is of concern is if the presumption that a property right will not be extinguished, unless such an intention is manifest in the legislation, is more readily concluded for native title than it is for general property rights. This concern is expressed by Justice Kirby in Wilson v Anderson. [45] The test that requires that a clear and plain intention be evinced from legislation that is established to take away the basic human rights to own property and be immune from arbitrary dispossession of property should apply equally to protect the rights of Indigenous Australians as it does to protect the rights of non-Indigenous Australians.
The readiness with which the Court inferred either the complete or the partial extinguishment of native title from the creation of rights in third parties in Miriuwung Gajerrong can be ascertained from a consideration of the Court’s application of the inconsistency test in respect of particular tenures. The case studies following indicate that the threshold at which the inconsistency of incidents test results in a finding of extinguishment of native title is lower than the threshold at which an appropriation of property is found to occur for general property rights.
It will also be seen in the case studies that, in determining whether native title was extinguished, the Court took into account the effect of the validation and confirmation provisions of the NTA and the way in which these provisions complemented and augmented the inconsistency test. As indicated, the legislative control over recognition and extinguishment of native title occurs through section 10 of the NTA which states that native title is recognised and protected in accordance with the NTA, and section 11(1) which proscribes extinguishment that is contrary to the NTA. The chief mechanism by which the NTA effects both the protection of native title and its extinguishment is through prescribing what State and Territory laws are valid and the conditions and effect of their validity. The way in which the confirmation and validation provisions prescribe the extinguishment of native title is set out in a Summary of the validation and confirmation of extinguishment provisions in the Native Title Act 1993 provided as part of a set of resources produced by this Report. [46]
The case studies provide an illustration of the operation of both the inconsistency test and the NTA in determining either the complete or partial extinguishment of native title in relation to particular tenures.
Complete extinguishment of native title by laws or acts which create rights in third parties occurs where the continued enjoyment of all native title rights is inconsistent with the legal rights and interests created by executive or legislative acts. Chief Justice Gleeson’s decision in Wilson v Anderson provided a guide to when this might occur: where the law or act creates a right of exclusive possession in third parties in respect of a parcel of land the subject of native title. [47]
As can be seen from Table No 1, below, complete extinguishment occurred in Miriuwung Gajerrong in relation to seventy percent (seven from ten) of the tenures or executive acts considered. A striking example of the application of the inconsistency test to find complete extinguishment of native title is in relation to nature reserves. It is striking because nature reserves are not the type of interest one would think inconsistent with, let alone destructive of, Indigenous interests. And striking because it reflects the complete failure of the law to protect Indigenous interests in places where they might not only co-exist with non-Indigenous interests but flourish together. [48]
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Extinguishing native title on nature reserves 1 Identifying Rights The creation of the nature reserves in Western Australia included in the claim area of the Miriuwung Gajerrong people occurs through a twofold process: reservation and vesting. The inconsistency test requires identification of the rights created by legislation and executive acts in both steps of this process. The process of reserving land for the purpose of creating a nature reserve occurs under the Wildlife Conservation Act 1950 (WA) (‘Wildlife Conservation Act’) and the Land Act 1933 (WA) (‘Land Act’). The Wildlife Conservation Act provides that ‘nature reserve means land reserved to Her Majesty, or disposed of, under the Land Act or any other Act, for the conservation of flora or fauna’. Under the Land Act a reserve could be created for the ‘conservation of…indigenous flora and fauna’. By s23(1) of the Land Act a person of Aboriginal descent is authorized to take sufficient flora and fauna for food for himself and family. Under s33 of the Land Act, the Governor, by Order of Council, may direct that a reserve vests in a body or person to be held in trust for the identified purposes. [49] The effect of such an order is to vest the legal estate of the land in the person or body named, to be held by that person or body as trustee of a public charitable trust. [50] 2 Comparing rights, finding inconsistency The High Court found that, by designating land as a reserve, the executive was asserting the right to say how the land could be used. This was inconsistent with the continued exercise by native title holders to decide how the land could be used or could not be used. [51] In addition the creation of a nature reserve was found to be inconsistent with a native title right to hunt or gather over land. [52] The vesting of a reserve under s33 Land Act, which vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes, is inconsistent with the continued existence of any native title rights and interests in the land. 3 Finding Extinguishment Before concluding that the result of the above inconsistency was the complete extinguishment of native title, the Court considered the operation of the NTA. As indicated, the mechanism by which the NTA achieves both the protection of native title and its extinguishment is through prescribing what State and Territory laws are valid and the conditions and effect of their validity. The only basis for the invalidity of a law which impacts on native title is that it is discriminatory under s10 of the RDA (which took effect from 31 October 1975). The grant of an interest in land is discriminatory if it fails to confer on native title holders a benefit enjoyed by other titleholders, or if it imposes on native title holders a detriment that is not imposed on any other titleholders. Only the latter discriminatory effect will render the grant invalid. [53] The validation provisions of the NTA validate acts otherwise invalid as a result of the RDA and prescribe the effect that such discriminatory acts will have on native title. The confirmation provisions specify particular tenures that either extinguish or partially extinguish native title if the tenure is valid or validated by the validation provisions of the NTA. [54] In determining whether the NTA protects native title from the extinguishing effect of the vesting provisions of the Land Act involving the establishment of a nature reserve, the following questions need to be answered:
In relation to (a) the vesting of a nature reserve, both before and after 1975, is valid. Before 1975 the RDA has no effect. Where the vesting took place after 1975 (as it did in three instances in Miriuwung Gajerrong) the vesting was not invalid by the operation of the RDA even though it was discriminatory. That is because the nature of the discrimination was not such as to render the act invalid. Rather, the discrimination was the failure to confer a right to compensation to native title holders for the appropriation of their property in the same way provided to non-Indigenous title holders. The RDA operated to extend this benefit to native title holders rather than invalidate the vesting itself. In relation to (b) the confirmation provisions do not provide for the effect of vesting involving the establishment of a nature reserve on native title. The confirmation provisions prescribe the effect of a ‘previous exclusive possession act’ is to extinguish native title completely and the effect of a previous non-exclusive possession act is to extinguish native title to the extent of any inconsistency. Section 23B(9A) provides that a vesting which involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area is not a previous exclusive possession act. Thus while the NTA does not explicitly require the extinguishment of native title on nature reserves, it fails to protect native title where this occurs through the application of the inconsistency test. Native title is thus extinguished. [55] The failure of the NTA to proscribe the extinguishment of native title outside of the NTA is a concern from a human rights perspective and is discussed further at pages 65-69 of this Report. The extinguishment of native title by the creation of a nature reserve illustrates the effect of applying a test which only considers the legal rights created, rather than the existing relationships and the possibility of their co-existence. |
As indicated above, the main effect of partial extinguishment on native title is to extinguish native title rights to control access to land, speak for country, or make decisions in relation to the land.
An example of the way in which the High Court determines the partial extinguishment of native title rights to control access to the land was demonstrated in Miriuwung Gajerrong in relation to the grant of a mining lease under the Mining Act 1978 (WA) (‘WA Mining Act’). The extinguishment of native title rights by a mining lease does not occur under the confirmation provisions of the NTA. However the NTA fails to protect native title from the effect of the inconsistency test as it is applied by the common law.
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Extinguishing native title rights by the grant of a mining lease 1 Identifying rights Section 85 of the WA Mining Act confers upon the lessee of a mining lease a right of exclusive possession for ‘mining purposes’. The High Court found that the grant of exclusive possession for mining purposes was directed at preventing others from carrying out mining activities, and it was not intended to exclude others from all parts of the lease. [56] The term ‘mining purposes’ was held to be broad and encompassed all rights necessary for its meaningful exercise. [57] A grant of a mining lease entitled the grantee to access the land for mining purposes. 2 Comparing Rights; Finding Inconsistency The native title right to control access to the land was found to be inconsistent with the right to access under the grant of a mining tenement. Deciding inconsistency in relation to other native title rights was not possible without a greater particularisation of the rights claimed. The Court also raised the issue of inconsistency, not at the level of rights but at the level of the exercise of rights.
The right identified as inconsistent with the grant of a mining lease was the native title right to control access to the land. 3 Finding extinguishment As noted in relation to vesting under the Land Act, it is necessary to consider whether the extinguishment resulting from the above inconsistency is contrary to the NTA. In determining whether the NTA protects native title from the extinguishing effect of the grant of a mining lease, the following questions need to be answered:
In relation to (a), if the mining lease were granted before 1975, the grant would be valid and the extinguishment effective. There is nothing in the NTA to ameliorate this effect. Unsurprisingly the grants considered in Miriuwung Gajerrong took place after 1975. Thus the effect of the RDA needs to be considered. As previously indicated the grant of an interest in land is discriminatory if it fails to confer on native title holders a benefit enjoyed by other titleholders or if it confers on native title holders a detriment that is not conferred to any other titleholders. It is only in relation to the latter that the RDA renders the grant invalid. And it is only in relation to invalid acts that the NTA operates to validate the grant and prescribe the effect of a validated grant on native title holders. Thus it is necessary to compare the effect that the WA Mining Act has on native title compared with other forms of title. In this regard where a mining lease is granted on private land or on Crown land the subject of a pastoral lease the owner or occupier of such land is entitled to compensation and other procedural rights. [59] While native title holders do not satisfy the definition of ‘owner’ there was some doubt as to whether they satisfied the definition of occupier under the WA Mining Act. [60] If native titleholders cannot satisfy the definition of ‘occupier’, the RDA is engaged because native titleholders have not been conferred a benefit enjoyed by others under the WA Mining Act. The effect of the RDA would be to extend the benefit conferred on other titleholders to native title holders. The effect would not be to invalidate the grant. Consequently, native title holders do not get the benefit of the non-extinguishment principle that would flow from the validation of otherwise invalid mining leases under the validation provisions of the NTA. [61] Instead, the extinguishing effect of the grant of a mining lease upon the native title right to control access remains. Nor, in response to (b) above, do the confirmation provisions of the NTA change this outcome for native title holders. |
As discussed above [62] the non-extinguishment principle, in which native title continues to exist even though it has no effect in relation to inconsistent acts, only arises where the native title rights are not inconsistent with the rights created under the grant of non-Indigenous tenures and where the doing of any activity in giving effect to the rights created by statute or executive act conflicts with the native title rights in question. In such a case the rights under the non-Indigenous tenure, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them.
The application of the non-extinguishment principle was demonstrated in Miriuwung Gajerrong in relation to pastoral leases in Western Australia. The Court found that many native title rights to use the land the subject of the pastoral lease would continue unaffected by the lease. These include the native title right to hunt or gather traditional food on the land. On the other hand the native title right to burn off the land was probably inconsistent with the rights under the lease and would be extinguished rather than suspended for the duration of the inconsistency. However where the leaseholder, in the exercise of rights under the lease, conducted activities that were inconsistent with the native title rights, such as the erection of a shed or fence, the doing of these activities would prevail over the native title rights.
Once applied, the inconsistency of incidents test is likely to either reduce the rights that native title holders can exercise on commonly held land to traditional activities or extinguish native title completely. The native title rights most vulnerable to extinguishment are ones which claim control over resources, control of access or use of the land and decision-making power in relation to the land. [63] The result of such extinguishment is that outcomes that native title can deliver to Indigenous people are significantly reduced. The hope that native title would deliver economic and political outcomes from the exercise of these rights is unlikely to be realised. The NTA has not only failed to address this process, it has contributed to it. This will be discussed in the following sections.
NTA Prescribes Complete and Partial Extinguishment of Native Title
The extent to which native title is extinguished is within the statutory control of the Commonwealth. The High Court has made it clear that the NTA now directs the native title processes of extinguishment and recognition through s10 and s11 of the NTA. It is clear from the case studies that the NTA fails to give native title adequate protection from extinguishment. The NTA, through the validation and confirmation provisions, marks out a vast area in which State and Territory laws will have full effect to completely or partially extinguish native title. These provisions not only fail to address past extinguishment of native title, they substantiate it in a vast number of cases. The following tables and commentary outline the effect that these provisions have on native title in relation to particular tenures considered in the Miriuwung Gajerrong and Wilson v Anderson decisions.
The confirmation provisions
The confirmation provisions were inserted into the NTA by the 1998 amendments. The title of the new provisions, ‘confirmation of past extinguishment’, indicates a government intention to codify existing legal principles established in the few High Court decisions then available, principally Mabo (No 2), Wik [64] and the Fejo [65] decisions. This extrapolation from existing decisions became one of the most contentious aspects of the 1998 amendments. The 1998, 1999 and 2000 Native Title Reports criticize this process as confirming the discriminatory effect of State laws on native title.
The confirmation provisions operate to give full effect to either specific tenures or categories of tenures resulting in the extinguishment of native title, where there is a grant of exclusive possession, or the partial extinguishment of native title where there is no grant of exclusive possession. A summary of the operation of these provisions is contained in Annexure 3 of this Report.
The Wilson v Anderson decision illustrates the immense impact that the confirmation provisions can have upon Indigenous aspirations for legal recognition of their traditional interests. Chapter 4 of this Report provides a detailed account of the human cost of the confirmation provisions to Indigenous people. In relation to the impact of these provisions for the Eulahaly – Dixon people, the grant of a lease under the Western Lands Act 1901 (NSW) completely extinguished their native title. As set out in chapter 4 many other claimant groups can extrapolate from this decision a similar fate to their applications for native title.
The confirmation provisions also operated in the Miriuwung Gajerrong and Wilson v Anderson decisions to ensure extinguishment and partial extinguishment resulting from the creation of many tenures as set out in Table No 1.
Table No 1: Tenures specified in the confirmation provisions that the High Court has found, in both the Miriuwung Gajerrong and Wilson v Anderson decisions, to have an extinguishing effect on native title
| Tenure | Complete Extinguishment / Partial Extinguishment / Non-extinguishment | Basis for Extinguishment |
| Western Australia | ||
| Pastoral Lease | Partial Extinguishment; loss of right to control access to, or the use to be made of, the land; further findings required by Federal Court. | Land Act 1898 (WA); Land Act 1933 (WA); NTA ss23F & 23G; Titles (Validation) and Native Title (Effect) Act 1995 (WA), (‘State Validation Act’), s12M. |
| Resumption under Public Works Act 1902 (WA) | Complete Extinguishment | Public Works Act (s18); lands vest in Crown for an estate in fee simple in possession for the public work. [66] |
|
Post RDA (1975) vesting |
Complete Extinguishment |
Previous exclusive possession act (‘PEPA’) vesting not invalid under RDA because other interests equally effected but RDA operates to extend compensation. |
| Vesting of Reserves | Complete Extinguishment | Vesting of legal estate in Crown, Land Act s33; NTA ss23B(2)(c), 23B(3), & s23B(9A). |
| Post RDA (1975) vesting | Complete Extinguishment | RDA not invalidate vesting, therefore validation provisions do not apply. |
| Rights
in Water and Irrigation Act 1914 (WA): |
||
| Vesting of control of waters in Crown, s4 | Partial Extinguishment – loss of right of exclusive possession over waters [67] | |
|
Vesting in buffer and expansion areas under s3(2) where fit definition of ‘Works’ |
Complete Extinguishment | Insufficient evidence that land fits definition of ‘works’ under Water and Irrigation Act 1914 (WA). |
| Special Lease | Complete Extinguishment | Land Act s116; NTA s23B(2)(c)(iv); Special lease for grazing amounts to exclusive pastoral lease under NTA. |
| Lease of Reserves: Leases to Ivanhoe 1977 and 1992 (grazing) | Complete Extinguishment | S32
Land Act RDA apply but not ‘relevant interest’ under State Validation Act. Subsequent lease extinguish, as exclusive pastoral lease, s23B(2)(c)(iv) NTA. |
| Pre RDA (1975) lease | Complete Extinguishment | |
|
Commercial leases to Harmon and Osborn 1990 |
Complete Extinguishment |
Post RDA; category A past act. |
| Northern Territory | ||
| Pastoral leases (NT) | Partial Extinguishment; loss of native title right to control access and to make decisions about the land | Non-exclusive pastoral lease a previous non-exclusive possession act; NTA Div 2B. |
| New South Wales | ||
| Perpetual grazing lease under NSW Western Lands Act 1901 |
Complete Extinguishment |
Exclusive possession pastoral lease; NTA, Div 2B. |
The validation provisions
The validation provisions of the NTA validate acts otherwise invalid as a result of the RDA and prescribe the effect that such discriminatory acts will have on native title. Annexure 3 sets out the regime that the NTA substitutes for invalidation under the RDA.
Table No 2 indicates the inadequacy of the protection of native title provided by the validation provisions of the NTA, by reference to specific tenures considered by the High Court in the Miriuwung Gajerrong and Wilson v Anderson decisions. It should be noted that, without the NTA, the RDA would have rendered each of these tenures invalid. Instead the NTA not only validates these tenures but ensures native title is either impaired or extinguished.
Table No 2: Tenures validated by the validation provisions of the NTA showing the effect that these provisions have on the extinguishment, partial extinguishment or non-extinguishment of native title
|
Tenure |
Complete Extinguishment / Partial Extinguishment / Non-extinguishment |
Basis for Extinguishment |
| Western Australia | ||
|
Where reserve created after 1975 and no prior pastoral lease |
Non-Extinguishment |
Land Regulations 1882 (WA) regs 29-34, Land Act 1898 (WA), Part III (ss39-46); Land Act 1933 (WA), Part III (ss29-37); NTA s19 NTA; State Validation Act s5; Category D past act. |
|
Rights in Water and Irrigation Act 1914 By-laws after RDA |
Non-Extinguishment |
Category D past act. |
|
Lease of Reserves: Commercial leases to Harmon and Osborn 1990 |
Complete Extinguishment |
Post RDA; category A past act. |
| Northern Territory | ||
|
Keep River National Park |
Non-Extinguishment |
Granted after 1975; Category D past act – NTA; not category B because Crown to Crown grant within s230(d)(i) NTA; special purpose and crown perpetual leases would otherwise extinguish native title completely. |
Table No 2 shows the effect of the validation provisions where the creation of a tenure would otherwise be invalid under the RDA. However, as explained in the Summary of the validation and confirmation of extinguishment provisions in the Native Title Act 1993, Annexure 3, not all tenures created after 1975 are invalid under the RDA. The NTA does not address those tenures. The result is that the extinguishment which is effected by the creation of these tenures is not ameliorated by the regime put in place under the validation provisions. A striking example of this is demonstrated in the case study of the grant of a mining lease under the WA Mining Act. Because other titleholders affected by the creation of a mine were provided compensation, the RDA operates to extend that compensation to native title holders. Yet the extinguishing effect remains. Under the validation provisions however, a mining lease is a category C past act and enjoys the protection of the non-extinguishment principle. There is no reason why the non-extinguishment principle cannot be statutorily prescribed in relation to the grant of all mining leases, not just those rendered invalid by the RDA and validated by the NTA.
Interaction of the validation and confirmation provisions
In respect of certain tenures granted after 1975, both the confirmation and validation provisions may apply. In such cases the NTA operates so that the harsher regime of extinguishment under the confirmation provisions prevails over the more lenient regime under the validation provisions. [68] An example discussed in Miriuwung Gajerrong is the grant of a mining lease defined by s245(1) NTA. [69] Where the grant takes place after 1975 the RDA would have operated to invalidate the grant. Under the validation provisions the lease is a category C past act and the non-extinguishment principle applies. However, this effect is taken over by the extinguishing effect of s23B(2)(c)(vii) of the confirmation provisions which provide for the complete extinguishment of native title.
The above analysis shows that the NTA fails to give native title adequate protection from extinguishment to ensure Indigenous people can enjoy their cultural rights and their property rights to the same extent as non-Indigenous people. Rather the approach has been to guarantee the extinguishment of native title, regardless of whether such extinguishment is discriminatory.
NTA Fails to Proscribe Extinguishment Resulting from the Application of General Principles
The NTA marks out a vast area in which State and Territory laws and the tenures they create will have full effect to completely or partially extinguish native title. Table No 1 and Table No 2 demonstrate the impact of this on the native title claims in the Miriuwung Gajerrong and Wilson v Anderson decisions. Similar mechanisms to those in the NTA which give State and Territory laws full effect can also proscribe discriminatory State and Territory laws that operate by their own force to either extinguish or impair the enjoyment of native title. Yet the NTA fails to take responsibility for common law extinguishment so as to limit the extinguishment of native title resulting from the creation of tenures other than those specified in the NTA. The effect of this on the native title claim of the Miriuwung and Gajerrong people is illustrated in Table No 3.
Table No 3: Tenures in Miriuwung Gajerrong which at common law extinguish native title and which the NTA fails to protect against
|
Tenure |
Complete Extinguishment / Partial Extinguishment / Non-extinguishment |
Basis for Extinguishment |
| Western Australia | ||
|
Reserves: Act of reservation on its own |
Partial extinguishment; loss of right to be asked permission to use or have access to the land |
Land Regulations 1882 (WA) regs 29-34, Land Act 1898 (WA), Part III (ss39-46); Land Act 1933 (WA), Part III (ss29-37); common law |
| Resumptions | Non-Extinguishment | Land Act, s109; common law |
| Vesting under Land Act for the purposes of creating a nature reserve | Complete Extinguishment | Vesting not amount to a PEPA but nonetheless valid and effective |
| Designating reserve for public purpose | Partial Extinguishment of right to decide how land can be used and right to control access | Common law, creating a reserve neither a PEPA or previous non-exclusive possession act |
|
By-laws before RDA under Part IV Rights in Water and Irrigation Act 1914 (WA) – prohibiting removal of flora and fauna |
Partial Extinguishment of native title rights to hunt fauna or gather flora on making of laws |
Inconsistency of incidents test |
| Mining leases | Partial Extinguishment; loss of right to be asked permission to use or have access to area of lease; need further identification of native title rights to determine extent of extinguishment | Common law; mining lease grant right of exclusive possession for mining purposes; not category C act because no invalidity by RDA; in any case right to control access already extinguished by pastoral leases |
| Argyle Mining Lease | Need further identification of native title rights to determine extent of inconsistency with lease right to exclusive possession for mining purpose |
Prior extinguishment over area because of vesting of reserve 31165 |
| Permit to occupy | Complete Extinguishment | Land Act s16 |
|
Mining Act 1904 (WA) |
Partial Extinguishment; loss of native title right to minerals or petroleum |
Property in minerals vested in Crown; ochre not a mineral under WA Mining Act |
|
Fishing |
Partial extinguishment; loss of exclusive right to fish or control access to waters |
Inconsistent with public right to fish |
The case study on the effect of the creation of nature reserves in Western Australia on native title, at pages 56-57 above, demonstrates the layers of extinguishment that occur when the government fails to proscribe extinguishment under the NTA.
The High Court, in both the Miriuwung Gajerrong and Wilson v Anderson decisions, has clearly indicated that, since the enactment of the NTA, the common law no longer establishes the principles on which the recognition and extinguishment of native title is based but rather takes its lead from the legislation. As discussed earlier, the Court was of the view that the division between complete and partial extinguishment in s23A NTA, and the fragmentation of native title into legal rights in s223 NTA, mandated an approach in which native title was likened to a bundle of rights each of which could be extinguished separately, to the extent of the inconsistency.
The implication of the High Court prioritising the statute in this way is that responsibility for setting standards in native title clearly rests with the Government through its legislative arm. On this point, the Government submitted to the PJC in relation to its inquiry on the findings of CERD that the amended NTA was discriminatory:
The confirmation regime provided no divestment of native title rights. The regime represents a recognition of the historical position that native title had been extinguished by grants of freehold and leasehold in Australia over the past 200 years on about 20 per cent of the Australian land mass and that it was not contrary to the Convention to confirm this historical position. [70]
In view of the High Court’s recent decisions, the Government’s response to CERD’s concern in relation to the confirmation provisions, divesting itself of responsibility for the historical dispossession of Indigenous people, can no longer be sustained. It not only ignores the primary role that the High Court has bestowed on the legislation for the recognition and extinguishment of native title, it also misunderstands the ethical obligations of a Government bound by international obligations of equality and non-discrimination.
The NTA fails to proscribe the extinguishing effect of historic tenures
The general law principles, as well as the statutory principles determining the extinguishment of native title, operate over time to increasingly confine the enjoyment of native title as new interests are created, resumed and recreated over traditional land. Inevitably native title rights of control, such as the right to control access and make decisions in relation to the land, will be the first to be extinguished. In order to salvage some interests in the land, native title holders must describe their rights in terms of specific activities on the land, such as a right to hunt or fish or burn off or perform ceremonies. Subsequent tenures over the same land that are inconsistent with any remaining native title will operate to extinguish what relics remain.
In Miriuwung Gajerrong it was clear that much of the land the subject of the claim had, for varying periods of time, been subject to the grant of a pastoral leasehold. While these leaseholds may have been resumed or expired, their extinguishing effect over native title rights to control access to the land remains. Where grants are subsequently made over the same land, such as a mining lease, the extinguishing effect of the new interest is stamped permanently onto native title, even though the interest itself may be short lived.
The process described above turns native title into an archaeological site of extinguishment. The Government’s response to the entrenchment of historical dispossession through the native title process was put to CERD as follows:
It is necessary to recognise that past acts, historical acts and the effects of these cannot be undone … Past acts, however discriminatory, which have resulted in dispossession of Australia’s Indigenous people cannot be undone, though of course, present and future policies can remedy the effects, the current effects, of such acts. [71]
There are two distinct propositions in this response. First, the government cannot undo the past; and second, present and future policies can remedy the effects of past acts. In relation to the first, claiming the simple truism that ‘what has occurred has occurred’ and ‘the past is the past’ does not accurately describe the situation. The recognition of native title in 1992 as a pre-existing right means that, with every native title case, the court is required to insert into the history of land tenures affecting the claim area from sovereignty to the date of the claim a new element; native title. The recognition of native title requires the past to be retold so that what was done in silence, (without interpretation) is named appropriation or extinguishment or co-existence. Statements like ‘we cannot undo the past’ fail to take account of the reinterpretation of history that the recognition of native title has forced Australia, governments, courts and citizens alike, to face.
In relation to the second proposition the statement accepts that, with the new knowledge of the continuing relationship of Indigenous people to land, current policies can change the impact of the past for present and future Indigenous people. The High Court has handed the baton of native title back to the Government charging it with the responsibility of ensuring native title benefits Indigenous people. The Commonwealth can limit the extinguishment of native title just as it has confirmed it in the NTA. These are choices available to it. The Government, in line with its human rights obligations [72] could have chosen to proscribe extinguishment by tenures that have either expired or terminated through legislation ensuring that the native title process is focused on current and future dealings.
The effect of prohibiting the extinguishment of native title resulting from historic tenures was demonstrated to a limited extent by the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). This was the complementary Western Australian legislation authorized by the confirmation provisions of the NTA. Rather than fully implement the extinguishing regime permitted by the NTA, it limited the effect of complete extinguishment from the creation of leases and scheduled interests identified in the confirmation provisions (excluding freehold) to those tenures still in force on 23 December 1996.
Another legislative tool directed at limiting extinguishment from historic tenures (other than freehold land or reserved land) is s47B of the NTA which excludes their extinguishing effect where the land is currently vacant Crown land and the native title claim group occupy the area. It does not, however, limit extinguishment resulting from historic tenures where there is a current tenure with which native title might co-exist.
The recognition of native title has required the courts to reinterpret history as if native title had existed from sovereignty. It is important that, as a result of this reinterpretation, native title is made meaningful to Indigenous and non-Indigenous people co-existing on country. Meaningful to Indigenous elders recognised as the owners of the land; meaningful to future Indigenous generations whose elders, grandparents and great grandparents have been recognised as the original owners of the land; meaningful to miners wishing to develop land which has significance to Indigenous people; meaningful to farmers who have historically lived beside Aboriginal people but never known their common connection.
It is clear from the decision in Miriuwung Gajerrong that the High Court has charged the Government with the responsibility of giving native title new meaning. There are legislative mechanisms available to the Federal and State governments to limit the accumulation of extinguishment that increasingly restricts native title. These mechanisms should apply to all historic tenures affecting native title.
Limited compensation for the deprivation of native title rights
The arbitrary deprivation of a property right belonging to a particular race or ethnic group is a breach of article 5(d) of ICERD. CERD makes it clear in General Recommendation 23 on Indigenous Peoples [73] that ‘where [Indigenous Peoples] have been deprived of their lands and territories traditionally used or otherwise inhabited or used without their free and informed consent, [States are] to take steps to return these land and territories. Only where this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories’. [74]
The provision of compensation for extinguishment under the NTA and by the common law falls very short of this international standard. In relation to extinguishment under the confirmation provisions, NTA s23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred either at common law or where compensation would have been available by virtue of the RDA. The purpose of this provision was explained by the High Court in Wilson v Anderson:
[The purpose] is to limit, so far as possible, the entitlement to compensation to cases where the ‘act’ is invalid by reason of the RDA and is subsequently validated by s14 of NTA or s8 of the State Act. However s23J may also be attracted in respect of a valid ‘act’ which, although satisfying the definition of ‘previous exclusive possession act’ would not completely extinguish native title at common law. [75]
In any other case there is no compensation for the extinguishment of native title by the confirmation provisions. Nor is there provision for compensation for the impairment of the exercise of native title rights where the non-extinguishment provisions apply under the confirmation provisions. [76]
Compensation under the validation provisions is also limited under s17 NTA to category A or B past acts. In relation to category C and D past acts, the effect of which is not to extinguish native title but may be to impair its exercise, compensation is only paid where, in relation to ordinary title, the act could not be validly done. [77]
Where complete or partial extinguishment of native title results from the common law and not the NTA, there is no provision for compensation to native title holders under the NTA. Nor is there provision for compensation for the impairment of the exercise of native title. In some cases, where a tenure is created after 1975, the RDA may operate to extend to native title holders the compensation provided under the particular statute to other titleholders.
The presumption that compensation is provided for the deprivation of property rights is a fundamental postulate of the legal system. It is provided for in section 51(xxxi) of the Commonwealth Constitution. The failure to provide this equally to Indigenous people whose property rights have been appropriated or extinguished attracted the opprobrium of Justice Kirby in Wilson v Anderson:
[T]here is no reason why, in respect of indigenous Australians, McHugh J’s dictum in Marshall v Director-General, Department of Transport should not be faithfully applied. His Honour there said that legislation empowering the deprivation of rights that an Australian would otherwise enjoy ‘should be construed with the presumption that the legislature intended the claimant to be liberally compensated’. After so many legal injustices in the past, I cannot accept that presumptions such as this are available to the settlers and their descendants and successors but not to indigenous Australians. [78]
The extinguishment of native title raises many concerns from a human rights perspective. The additional failure to compensate Indigenous people for this violation of their rights multiplies this injustice. The Federal Government has the legislative capacity to redress this injustice both as it occurs through the failure of the courts to apply a presumption in favour of compensation for the extinguishment of native title and as it occurs by its own hand.
Conclusion
Ten years after the Mabo decision was first handed down, the common law test for extinguishment is now crystallized in the inconsistency of incidents test. The most Indigenous people could have asked from the common law was that, where the NTA did not apply directly to effect extinguishment, the common law would adopt an approach which favoured non-extinguishment over extinguishment. That is, an expectation that Indigenous People would be able to enjoy their property rights to the same extent as that enjoyed by non-Indigenous People. Instead the High Court took its lead from the NTA as outlined in Miriuwung Gajerrong. The Court has based its approach on the dual concepts in the NTA of extinguishment and partial extinguishment. Sections 10 and 11 were also influential in its decision to emulate the NTA approach to extinguishment.
This decision is very unsatisfactory to Indigenous people. In addition to entrenching inequality, the decision provides an unstable and uncertain basis for traditional owners seeking to utilise the cultural, social and economic values of their land. Uncertainty about which tenures extinguish native title rights and to what extent can be added to the other uncertainties infusing the title; uncertainty about how traditions and customs translate into rights; uncertainty about the extent to which rights can evolve and change; and finally uncertainty at the layers of extinguishment that might have occurred since the assertion of sovereignty.
The only generalisation and certainty for native title holders is where a particular tenure is found to extinguish all native title rights, regardless of the nature of the rights asserted, as in the Wilson v Anderson decision. This is not the certainty that I am advocating. The human rights principles of equality and non-discrimination can offer a different type of certainty for native title holders, that is, that they are able to enjoy their property with the same protection offered to non-Indigenous title holders.
1 Western Australia v Ward & o’rs [2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’).
2 Wilson v Anderson & o’rs [2002] HCA 29 (8 August 2002) (‘Wilson v Anderson’).
3 660 United Nations Treaty Series 195 (Australia joined 1975).
4 (1995) 183 CLR 373 (‘Native Title Act Case’).
5 ibid., per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ at 483.
6 Committee on the Elimination of Racial Discrimination (‘CERD’), Decision 2(54) on Australia, UN doc CERD/C/54/Misc.40/Rev.2, 18 March 1999.
7 The Hon A Downer, Minister for Foreign Affairs, Government to review UN treaty Committees, Press Release, 30 March 2000. For discussion on the government’s response to the CERD decision see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, Human Rights and Equal Opportunity Commission, Sydney, 2001, pp79-83; and Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000, Human Rights and Equal Opportunity Commission, Sydney, 2001, pp26-27.
8 On 9 December 1999 the Senate referred to the PJC for inquiry and report; (a) whether the finding of the Committee on the Elimination of Racial Discrimination (CERD) that the Native Title Amendment Act 1998 is consistent with Australia’s international legal obligations, in particular, the Convention on the Elimination of All Forms of Racial Discrimination, is sustainable on the weight of the informed opinion, (b) what amendments are required to the Act, and what processes of consultation must be followed in effecting those amendments, to ensure that Australia’s international obligations are complied with; and (c) whether dialogue with the CERD on the Act would assist in establishing a better informed basis for amendment to the Act.
9 Native Title Report 2000, op.cit., pp5-6.
10 Native Title Act Case, op.cit., per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ at para 144 of their Honours’ reasons.
11 ‘This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975’.
12 See Annexure 3 for Summary of the validation and confirmation of extinguishment provisions in the Native Title Act 1993; and Annexure 2 for a table showing various tenures and their affect on native title, following the recent High Court decisions.
13 op.cit., per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ at 469.
14 The exact dates differ depending on whether the act is an exclusive or non-exclusive possession act, an intermediate period act or a past act. These are set out in Annexures 3 and 2.
15 Category C and D past acts defined in the validation provisions and s23G of the confirmation provisions: NTA.
16 The extinguishment of native title is defined in s237A NTA as permanent, meaning the native title is incapable of revival. Non-extinguishment is also defined in s238 as the continued existence of native title even though, where the act affects native title, the rights and interests have no effect either wholly or to the extent of the inconsistency.
17 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [76].
18 Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1, per Brennan J (with whom Mason CJ and McHugh J agreed) at 84.
19 Wilson v Anderson, op.cit., per Gleeson CJ at [4].
20 Sections 23B(c)(i) and s23C.
21 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [76].
24 Per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [82].
26 [2000] FCA 191 (3 March 2000).
27 ibid., per North J at [784].
28 For analysis of the Full Federal Court decision see Native Title Report 2000, op.cit., pp 47 – 84.
29 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [82].
36 The human rights implications of describing native title rights as specific activities is discussed in chapter 1 of this Report, especially pages 26-27.
37 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [143]-[151].
39 Miriuwung Gajerrong, op.cit., per Kirby J at [592].
40 Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (11 October 2001).
41 Miriuwung Gajerrong, op.cit., per Kirby J at [594].
42 F Bennion, Statutory Interpretation: a code, (3rd ed), Butterworths, London, 1997, section 278; Clissold v Perry (1904) 1 CLR 363 at 373; Greville v Williams (1906) 4 CLR 64; Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177 at 181, 182.
43 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [78]; Wilson v Anderson, op.cit., per Gleeson CJ at [5].
44 Miriuwung Gajerrong, op.cit., per Kirby J at [589].
45 Wilson v Anderson, op.cit., at [140]-[141].
47 Wilson v Anderson, op.cit., per Gleeson CJ at [11].
48 A further analysis of the inappropriateness of finding extinguishment of native title on nature reserves is discussed in chapter 4 of this Report.
49 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [235].
53 See chapter 3 for a full analysis of the effect of the RDA on laws.
54 See Summary of the validation and confirmation of extinguishment provisions in the Native Title Act 1993, annexure 3.
55 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [258].
59 Mining Act 1978 (WA), sections 27-39 & 123-125.
60 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [317]-[319].
61 A mining lease is a category C past act under s239, the effect of which is to apply the non-extinguishment principle under s15 NTA.
64 Wik Peoples v Queensland & o’rs (1996) 187 CLR 1.
65 Fejo v Northern Territory [1998] HCA 58 (10 September 1998).
66 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [203].
69 Mining leases which involve the construction of private residences.
70 Commonwealth Attorney-General’s Department, Submission to the PJC Inquiry: Consistency of the Native Title Amendment Act 1998 with Australia’s obligations under ICERD, Submission 24, Part II, p21 at [91].
71 Australian Representative, Transcript of Australia’s Hearing before the CERD Committee, March 1999. For unofficial transcript of Australia’s complete appearance before CERD, see: Foundation for Aboriginal and Islander Research Action, <www.faira.org.au/cerd/index.html>.
72 Article 2 of ICERD requires states to ‘take effective measures to… rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists’.
73 (1997) in Compilation Of General Comments And General Recommendations Adopted By Human Rights Treaty Bodies, UN doc HRI/GEN/1/Rev.5, 26 April 2001, p192.
19 March 2003.
